Should the Alienation of Land Act 68 of 1981 be amended to Address Homelessness? Sarrahwitz v Maritz 2015 8 BCLR 925 (CC)

Abstract

This case note evaluates the judgment of the Constitutional Court in Sarrahwitz v Maritz 2015 8 BCLR 925 (CC). The authors evaluate the decision of the Constitutional Court to resort to the amendment of the Alienation of Land Act 68 of 1981 to protect a vulnerable purchaser of property against homelessness. It is argued that the origins and purpose of the Act should have been considered by the Constitutional Court. Such consideration shows that the Act protects against a specific vulnerability that an instalment-sale purchaser faces, and deals with the right to take transfer. This vulnerability is not necessarily homelessness and it is, therefore, questioned whether the Act can be applied to give effect to section 26 of the Constitution of the Republic of South Africa, 1996. This contribution further argues that an alternative solution could have been developed, in line with constitutional values and the common law provision that provides the trustee of the insolvent estate with the discretion to cancel a sale agreement pertaining to property sold but not yet transferred. It is submitted that the minority judgment's reliance on the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 provided the best solution in this instance.